News flash==== MPEG/builds bite-encoder/with MAD COW
June 3, 1997
Rancher Sues Using Law
Against Disparaging Food
By LAURA JERESKI
Staff Reporter of THE WALL STREET JOURNAL
AMARILLO, Texas -- Oprah Winfrey's topic was
mad-cow disease, and, as usual, the show was
provocative. The segment opened by calling England's
recent mad-cow outbreak "the biggest health crisis since
Chernobyl."
Then, after a food-safety activist
opined that mad cow posed a
dire threat to America as well --
so dire it might make the AIDS
crisis look like the common cold
-- Ms. Winfrey exclaimed: "It
has just stopped me from eating
another burger!"
Granted, no mad-cow disease
has ever been found in the U.S.
And it is also true that suspicious
human deaths in England haven't
been definitively linked to mad cow. Still, Oprah and her
guests are free to say things like this about American
beef if they want to, aren't they?
Not if Paul Engler has anything to do with it. He runs a
big cattle-feeding operation and ranch here. He watched
in horror as prices of cattle and cattle futures plunged the
day of the television show in April 1996. Mr. Engler
says he lost $6.7 million in what came to be called "the
Oprah crash." Now he wants his $6.7 million back.
Mr. Engler has sued Oprah,
along with her production
company and the beef critic on
her show, national Humane
Society official Howard Lyman.
Another Texas cattleman also
sued. "The way things are going,
the media has too much latitude
to say what they want to say,"
Mr. Engler says. "They are
hiding behind the First
Amendment."
If the media have the Amendment, Mr. Engler has a
shield, too: Texas' False Disparagement of Perishable
Food Products law. It is one of 13 state "agricultural
disparagement" statutes passed in the eight years since
the U.S. apple industry was pummeled by the Alar
scare.
Apple growers sued CBS's "60 Minutes" and an
environmental group over the report, which had said a
chemical sprayed on some apples posed a cancer risk.
Though many scientists later termed any such risk
overblown, the apple growers lost the suit.
But they didn't have a food-disparagement law to rely
on. By and large, the new state laws say a critic of
agricultural products can be held liable if the criticism
isn't based on "reliable scientific inquiry, facts, or data."
As for what constitutes reliable science in the courtroom,
the Supreme Court, in a case not involving
product-disparagement laws, laid out some tests in
1993, including whether a theory had been published in
a peer-reviewed journal.
Emory University Law Professor David Bederman,
noting that the agricultural-disparagement laws put "the
burden on the speaker to prove the truth" of what is
said, contends they are "flagrantly unconstitutional." Mr.
Engler's suit will test that. The case could come to trial
as early as next month in federal court here.
The world Mr. Engler inhabits is far from that of
television studios and Humane Society offices. Now 67
years old, he started his first ranch and cattle feed-lot on
this wind-blown plain 40 years ago. Today he has an
operation, Cactus Feeders Inc., with $650 million a year
in revenue. He trades cattle futures to hedge the risks of
the volatile business.
Sporting ostrich-leather boots and a diamond-rimmed
gold ring with the Cactus Feeders logo, Mr. Engler runs
his operation from an office festooned with trophies such
as one labeled Grand Carcass Champion of 1993.
Cactus Feeders won the prize at a competition hosted
by a local meatpacker.
The Oprah guest who riled Mr. Engler had once been a
cattleman himself, but had a change of heart. The
Humane Society's Mr. Lyman was a Montana rancher
for years. But now the 58-year-old Mr. Lyman heads a
Humane Society program known as "Eating With
Conscience."
After two other guests told Ms. Winfrey there was no
mad-cow threat in the U.S., Mr. Lyman brought up the
issue of supplementing cattle feed with the ground-up
remains of livestock and other animals that died natural
deaths, which feed-lot operators do to give cattle extra
minerals and protein. Mr. Lyman said that "100,000
cows per year in the United States are fine at night, dead
in the morning. The majority of those cows are rounded
up, ground up, fed back to other cows. If only one of
them has mad-cow disease, that has the potential to
infect thousands."
After Ms. Winfrey asked him how he knew this was
true, and he assured her it was, she asked her audience
if that didn't concern them. It did, they replied
vociferously. That was when she exclaimed that she
wouldn't eat another burger -- triggering another rousing
reaction from the audience. After outraged protests from
cattle people, Ms. Winfrey gave them a chance to
defend beef on a later program.
Mr. Engler wasn't mollified. "Can you believe what she
did?" he demanded of a lawyer friend.
Mr. Engler concedes that he used to give his cattle grain
supplemented with bone meal from ground-up animals.
But he says he and many other cattlemen have stopped.
And as of next month, it will be illegal in the U.S. to feed
to cud-chewing animals such as cattle and sheep the
remains of other cud-chewers.
Negative publicity for beef is something cattlemen don't
need more of. Amid worries such as cholesterol, they
suffered through years of declines in per capita beef
consumption in America. Lately, cyclically weak cattle
prices have made their lot even harder. "If I lose one
consumer of beef, that's part of my market I'll never
recover," Mr. Engler says.
A group called the American Feed Industry Association
led the fight for the new laws to protect farm products
after the Alar-on-apples debacle. The Texas Cattle
Feeders Association lobbied for such a law in Texas.
Among its board members: Paul Engler.
After the Oprah show, the law came in handy. He filed
suit, naming not only Ms. Winfrey but also her Chicago
production company, Harpo Productions Inc., and the
show's distributor, King World Productions Inc., along
with Mr. Lyman. The suit was filed in state court but has
been transferred to federal court in Amarillo. The other
cattleman's suit has been consolidated with it.
Bumper Sticker
Mr. Engler reads all the legal papers and listens in on his
lawyers' conference calls; they call him only half-jokingly
the "lead counsel."
The suit drew an outpouring of support from the
like-minded. State Agriculture Commissioner Rick Perry
congratulated Mr. Engler for his approach, telling him:
"Don't argue. Go over and blow the hell out of them." A
small Arkansas rancher with just five cows sent a $5
check -- to help with legal fees, he suggested, or buy
some beer to toast the lawsuit. Another supporter faxed
Mr. Engler a message that found its way onto bumpers
in Amarillo: "The Only Mad Cow in America is Oprah."
Ms. Winfrey won't talk about the case. A lawyer
representing her, Charles L. Babcock, scoffs at the
cattleman's damage claim. Cattle markets can be
mercurial and respond to many things. "To isolate a
single show and say that's the reason the whole market
fell is a little much for me to swallow," he says.
In February, the defense team rolled a photocopier into
Mr. Engler's office and spent a week copying details of
his futures-trading strategy, his cattle numbers and the
content of his feed.
Mr. Lyman, asked if he is concerned about the suit,
says, "Why should I be afraid when I supposedly have a
First Amendment right to free speech?"
Hard to Be Sure
Normally, a trial on an issue like this would feature a
parade of scientific "experts." But the statute says only
reliable science will do. And one of the striking things
about mad-cow disease is how little reliable science
there is about it.
Mad cow makes an animal's brain look like a sponge.
Hence its technical name: transmissible spongiform
encephalopathy. In March of last year, the British
government said 10 deaths from a similar human malady,
a new variant of a rare disease called Creutzfeldt-Jakob,
were "most likely" a result of eating
mad-cow-contaminated beef. The news devastated
Britain's cattle industry.
Mr. Engler hopes that if his case comes to trial, the
dearth of agreed-upon science about mad cow will
pre-empt expert testimony from the other side. The two
sides are talking about a possible settlement. Mr. Engler
says he doesn't want an apology; he wants the money he
says he lost when markets nose dived after Ms. Winfrey
and her guest lit into American beef.
But what about the country's 200-year-old guarantee of
freedom of speech? Well, says Mr. Engler's son
Michael, "We have adjusted our thinking on the
Constitution in other ways. Maybe the First Amendment
isn't carved in stone." |
